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When trade mark stylisation strays too far: Lessons from the SPEED DEMON Decision

The first decision from IPONZ for 2026 teaches a very valuable lesson.  In Hemp Beverages Limited v Loaded Drinks Limited¹, The Commissioner reiterated that if you do not use your registered trade mark you may lose it!

Background

Hemp Beverages Limited (Hemp Beverages) owned Trade Mark Registration No. 1016286 SPEED DEMON in class 32 for non-alcoholic beverages.

Loaded Drinks Limited (Loaded Drinks), applied to revoke the trade mark for non-use.

Hemp Beverages sought to rely on their use of the stylised versions of their SPEED DEMON trade mark. Below are examples of how Hemp Beverages had used the trade mark:

Product label	The trade mark in use, in isolation from other elements on the label

The dispute turned on a familiar principle of whether use of a mark in a different form still qualifies as “use” of the registered mark under the Trade Marks Act 2002, sufficient to save a registration from removal for non-use.

Deciding against Hemp Beverages, Assistant Commissioner Robb, found that the distinctive character of the trade mark had been altered.  Therefore, the trade mark as used did not amount to use of the registered trade mark.

The Legal Test – Does not alter the distinctive character

The definition of “use” includes use in a form differing in elements that do not alter the distinctive character of the trade mark in the form in which it was registered.²

In Crocodile v Lacoste³ the Supreme Court of New Zealand (the highest court) set the strict principle of “use it or lose it” when it comes to defending non-use actions.  If there has been no use of the registered trade mark during the relevant three year period, the registration will be removed.  In that case, the Court also had to consider whether use of the marks set out below by Lacoste amounted to use of the crocodile composite mark, also set out below, in a form differing in elements that do not alter the distinctive character of the registered trade mark:

Trade mark as registered - Crocodile composite mark
Lacoste device mark as used
Lacoste device and word mark as used
Lacoste word mark

The Court found that assessing the differences between the trade marks in terms of distinctive character involved a global impression of the visual, aural and conceptual qualities of the trade marks.  While accepting that there was conceptual and aural similarity and some visual similarities between the marks, the Court found that there were significant visual differences between the trade mark as registered and the trade marks used.   

Specifically, the Court pointed to the depiction of the word Crocodile in a cursive script on an angle, and the differences between the realistic representation of the composite crocodile trade mark and the trade marks as used.  

The Court found that the distinctive character of the composite crocodile trade mark had two essential visual elements - the stylised word and the crocodile device.  The Court considered that if one of these essential visual elements was missing this would likely in itself mean that use of the Lacoste marks is in a form differing in elements that alter the distinctive character of the trade mark as registered.  When both of the essential visual elements were missing "this conclusion is, in our view, inescapable".

Thus, Crocodile confirmed the three-point test from Budweiser⁴, namely: 

1. What is the distinctive character of the registered trade mark?
2. What are the differences between the mark used and the registered trade mark? and
3. Do the differences identified in (2) alter the distinctive character identified in (1)?

Decision and Outcome

After considering the distinctive character of the mark as registered and used, the Assistant Commissioner (AC) found that while the words SPEED and DEMON appear on the label, Hemp Beverages’ stylised use did not preserve the distinctive character of the registered word mark resulting in the registration being revoked for non-use.

The AC found that the visual emphasis changed the identity of the trade mark.  The stylisation did more than decorate the mark – it reweighted its components.  In use:

• DEMON was dominant and visually striking; and
• SPEED was reduced in prominence

The AC further found that the stylised red letter D and the white word DEMON is what caught his attention when shown an image of the product in a display fridge.  Further, the stylised letter D had a metallic or reflective hue to it.  This suggests the red lettering may be more prominent in use than the proofs and other examples in evidence indicate.

Based on the above reasoning, the AC found that the differences between the registered word mark and its stylised use went beyond mere formatting or visual embellishment, resulting instead in a presentation that could not be regarded as a simple visual reiteration of the registered trade mark.

Turning to the conceptual meaning of the marks, the AC found that SPEED DEMON, when viewed as a whole, conveys a cohesive idea of speed, energy, and performance – ultimately pointing to “high energy” and in turn, energy drinks.  On the other hand, the stylised versions conveyed a materially different idea.  As a result, the composite idea of SPEED DEMON was no longer the central message.

By placing visual and conceptual emphasis on the word DEMON, reinforced by graphic elements such as a pentagram within the letter O, the branding shifted towards a distinctly supernatural theme rather than one of “speed or performance” – the idea of the trade mark as registered.

The altered emphasis was found to communicate an altogether different idea from that conveyed by the registered trade mark. 

Key takeaways for brand owners

Register what you actually use

If your branding relies on a strong visual identity:

• Register both the word mark and the stylised/logo version
• Consider multiple registrations covering key variants.

Avoid dominance shifts

Ensure that stylisation does not:

• Over-emphasise one element at the expense of another
• Create a different commercial impression.

Audit use regularly

Brand evolution is common.  Regularly review whether your current marketplace use:

• Still reflects your registered mark
• Could withstand scrutiny in a non-use challenge.

Think beyond appearance

Ask not only “Do the words still appear?” but:

• “Is the same idea being conveyed?”
• “Would consumers perceive this as the same mark?”

Be cautious with thematic branding

Graphic elements (e.g. symbols, motifs) can reshape meaning, particularly where they reinforce only part of the mark.

Conclusion  

The decision reinforces a simple but critical point – trade mark use is not a box‑ticking exercise.  The mere presence of the words is not enough and the identity of the mark must be preserved.  Simply having a registration will not secure broad protection if the mark, as used, tells a different story.

Ultimately, a word mark registration does not guarantee broad protection if the trade mark as used alters the distinctive character of the registered trade mark.  

Remember: Register the mark you use (or intend to use), and use the mark you register!

If you have specific questions about how this impacts your portfolio and overall IP strategy, please Contact Us - we’ll be happy to help.

Adyasree Sivakumar - June 2026